Filed Date: Dec. 12, 2018
Closed Date: March 5, 2020
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On December 12, 2018, the Federal Bureau of Investigation (FBI) submitted a draft application on the authority to conduct surveillance on foreign targets under the Foreign Intelligence Surveillance Act (FISA). After the FBI filed its official application in 2019, Judge Rosemary C. Collyer of the Foreign Intelligence Surveillance Court (FISC) released an opinion granting the warrant for surveillance on March 5, 2020. Since the opinion revealed a new interpretation of the word "facilities" and the probable cause standard surrounding the term as it pertains to FISA section 1805(a)(2)(B), the Office of the Director of National Intelligence (ODNI) released a redacted version of the opinion on September 23, 2020. In preparing this opinion, the FISC sought input from Amici Curiae David Kris, former Assistant Attorney General for National Security, and Ben Johnson, former National Security Agency computer scientist and FISC technical advisor.
FISA section 1805(a)(2)(B) allows a FISC judge to grant a warrant application if he or she has probable cause to believe that "each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power," as long as the application specifies the facilities to be monitored. The Amici argued that "facility" should be interpreted in a narrow manner, though their definition was redacted. Judge Collyer rejected this meaning, instead holding that Congress intended to interpret the term "facility" in line with its ordinary, broad meaning. She focused on the language pairing "facility" with "places" in the statutory text, indicating that a facility should be read in a way similar to a "place." Judge Collyer added that the purpose of this section FISA is to engage with third parties to cooperate in surveillance, which may not involve collections of communications at all; if "facility" was read too narrowly in this section, such solicitation of cooperation would be barred, according to the FISC.
Judge Collyer continued her opinion by discussing how the definition of "facility" interacts with "electronic surveillance." She stated that "facility," as it pertains to this section, only requires a finding of a connection to a foreign target, not anything more specific. She distinguished "facility" in this context from warrants that demand more specificity, like the pen register/tap and trace (PR-TT) warrant, highlighting that the latter has much more stringent relevance requirements than the section being interpreted here. Judge Collyer added that the warrant application process for "facility" in this context was enough to protect facilities from illegal searches.
In a heavily redacted section, Judge Collyer discussed how she found probable cause for granting a warrant for surveillance of this particular facility. The information on the target's foreign connections was redacted, and the rest of the section focused on determining probable cause for multiple "facilities," here, phone numbers. Judge Collyer held that a judge should make a probable cause finding into the target's use of each of the phone numbers at issue, and finish the inquiry, instead of analyzing the probable cause of the use of all three phone numbers as a group simultaneously. She stated that this comports with how judges typically treat probable cause inquiries, and it would ensure that the probable cause standard is not altered depending on the form of the application; she posited that, if the extra layer of scrutiny were required, then the Government would simply file individual warrants for the phone numbers to avoid a higher scrutiny level for the numbers as a group.
Since the warrant was granted, the case is presumed to be closed.
Ellen Aldin (12/15/2020)
Collyer, Rosemary M. (District of Columbia)
Collyer, Rosemary M. (District of Columbia)
Last updated May 11, 2022, 8 p.m.Docket sheet not available via the Clearinghouse.
State / Territory: District of Columbia
Filing Date: Dec. 12, 2018
Closing Date: March 5, 2020
Case Ongoing: No
Plaintiff is the Federal Bureau of Investigation
Public Interest Lawyer: Yes
Filed Pro Se: No
Class Action Sought: No
Class Action Outcome: Not sought
Causes of Action:
Special Case Type(s):
Prevailing Party: Plaintiff
Nature of Relief:
Source of Relief:
Order Duration: 2020 - 2020
Content of Injunction: